This case was last updated from Los Angeles County Superior Courts on 03/07/2022 at 05:04:51 (UTC).

CAITLIN JESSICA CARMICHAEL VS CEDARS-SINAI MEDICAL CENTER, A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 01/04/2022 CAITLIN JESSICA CARMICHAEL filed a Personal Injury - Other Personal Injury lawsuit against CEDARS-SINAI MEDICAL CENTER, A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0326

  • Filing Date:

    01/04/2022

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

CARMICHAEL CAITLIN JESSICA

Defendants

BAIN SEAN

CEDARS-SINAI MEDICAL CENTER A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

SCHIMMEL ALAN IRWIN

Defendant Attorney

WATSON ALEXANDER

 

Court Documents

Unknown - ALTERNATE DISPUTE RESOLUTION PACKET

1/4/2022: Unknown - ALTERNATE DISPUTE RESOLUTION PACKET

Unknown - FIRST AMENDED STANDING ORDER RE: PERSONAL INJURY PROCEDURES

1/4/2022: Unknown - FIRST AMENDED STANDING ORDER RE: PERSONAL INJURY PROCEDURES

Unknown - SECOND AMENDED SUPPLEMENTAL STANDING ORDER RE: COVID PROTECTIVE MEASURES RELATED TO FINAL STATUS CONFERENCE

1/4/2022: Unknown - SECOND AMENDED SUPPLEMENTAL STANDING ORDER RE: COVID PROTECTIVE MEASURES RELATED TO FINAL STATUS CONFERENCE

Unknown - THIRD AMENDED STANDING ORDER RE: FINAL STATUS CONFERENCE

1/4/2022: Unknown - THIRD AMENDED STANDING ORDER RE: FINAL STATUS CONFERENCE

Notice of Case Assignment - Unlimited Civil Case

1/4/2022: Notice of Case Assignment - Unlimited Civil Case

Voluntary Efficient Litigation Stipulation Packet

1/4/2022: Voluntary Efficient Litigation Stipulation Packet

Complaint

1/4/2022: Complaint

Summons - SUMMONS ON COMPLAINT

1/4/2022: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

1/4/2022: Civil Case Cover Sheet

Unknown - SIXTH AMENDED STANDING ORDER RE: MANDATORY SETTLEMENT CONFERENCE

1/4/2022: Unknown - SIXTH AMENDED STANDING ORDER RE: MANDATORY SETTLEMENT CONFERENCE

PI General Order

1/13/2022: PI General Order

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES

1/13/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES

Proof of Service by Substituted Service

1/27/2022: Proof of Service by Substituted Service

Proof of Service by Substituted Service

2/14/2022: Proof of Service by Substituted Service

Motion to Strike (not initial pleading)

2/16/2022: Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike (CCP 430.10) - DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) TO PLAINTIFF'S COMPLAINT

2/16/2022: Demurrer - with Motion to Strike (CCP 430.10) - DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) TO PLAINTIFF'S COMPLAINT

Declaration - STRIKE

2/16/2022: Declaration - STRIKE

5 More Documents Available

 

Docket Entries

  • 12/31/2024
  • Hearing12/31/2024 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 07/05/2023
  • Hearing07/05/2023 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 06/20/2023
  • Hearing06/20/2023 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/11/2022
  • Hearing04/11/2022 at 1:30 PM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 02/16/2022
  • DocketMotion to Strike (not initial pleading); Filed by Cedars-Sinai Medical Center, a California corporation (Defendant)

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  • 02/16/2022
  • DocketSTRIKE; Filed by Cedars-Sinai Medical Center, a California corporation (Defendant)

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  • 02/16/2022
  • DocketDemurrer - with Motion to Strike (CCP 430.10) (to Plaintiff's Complaint); Filed by Cedars-Sinai Medical Center, a California corporation (Defendant)

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  • 02/14/2022
  • DocketProof of Service by Substituted Service; Filed by Caitlin Jessica Carmichael (Plaintiff)

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  • 01/27/2022
  • DocketProof of Service by Substituted Service; Filed by Caitlin Jessica Carmichael (Plaintiff)

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  • 01/13/2022
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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1 More Docket Entries
  • 01/04/2022
  • DocketVoluntary Efficient Litigation Stipulation Packet; Filed by Clerk

    Read MoreRead Less
  • 01/04/2022
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 01/04/2022
  • DocketSixth Amended Standing Order re: Mandatory Settlement Conference; Filed by Clerk

    Read MoreRead Less
  • 01/04/2022
  • DocketThird Amended Standing Order re: Final Status Conference; Filed by Clerk

    Read MoreRead Less
  • 01/04/2022
  • DocketSecond Amended Supplemental Standing Order re: COVID Protective Measures Related to Final Status Conference; Filed by Clerk

    Read MoreRead Less
  • 01/04/2022
  • DocketFirst Amended Standing Order re: Personal Injury Procedures; Filed by Clerk

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  • 01/04/2022
  • DocketAlternate Dispute Resolution Packet; Filed by Clerk

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  • 01/04/2022
  • DocketComplaint; Filed by Caitlin Jessica Carmichael (Plaintiff)

    Read MoreRead Less
  • 01/04/2022
  • DocketCivil Case Cover Sheet; Filed by Caitlin Jessica Carmichael (Plaintiff)

    Read MoreRead Less
  • 01/04/2022
  • DocketSummons (on Complaint); Filed by Caitlin Jessica Carmichael (Plaintiff)

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Tentative Rulings

Case Number: *******0326 Hearing Date: April 11, 2022 Dept: 29


Case Number: *******0326 Hearing Date: April 25, 2022 Dept: 29

TENTATIVE

Defendant’s demurrer is SUSTAINED with leave to amend. Defendants’ motion to strike punitive damages is DENIED as MOOT.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Daniel K. Dik which satisfies the meet and confer requirements. (Code Civ. Proc. 430.41.)

Discussion

Battery, Assault, Sexual battery, False Imprisonment, and Intentional Inflection of

Emotional Distress, (Causes of Action 1-5)

Plaintiff’s first through fifth causes of action are based on a theory of vicarious liability. Plaintiff alleges that Defendant Cedars-Sinai (“Defendant”) is responsible for Defendant Bain’s actions because Bain is Defendant’s agent acting within the scope of the agency relationship.

Defendant argues these causes of action fail as against Defendant because the sexual misconduct alleged falls outside the scope of Bains employment as a matter of law. The Court agrees.

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employer’s business. (See Montague, supra, 223 Cal.App.4th at 1521; Lisa M., supra, 12 Cal.4th at 298-99.) The employee’s conduct falls within the scope of his employment and is thus a causal nexus if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.) An employer may also be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Id.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Id.) “[For] adoption and ratification there must be some relation, actual or assumed, of principal and agent.” (Watkins v. Clemmer (1933) 129 Cal.App. 567, 572.) “A principal cannot ratify the act of the alleged agent, unless the agent purported to act on behalf of the principal.” (Emery v. Visa Internat. Service Ass’n (2002) 95 Cal.App.4th 952, 961, emphasis added.)

“That the employment brought tortfeasor and victim together in time and place is not enough [to satisfy the nexus required for respondeat superior liability].” (See Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th at 298.)

“Sexual assaults are not per se beyond the scope of employment. [Citation.] But courts have rarely held an employee’s sexual assault or sexual harassment of a third party falls within the scope of employment.” (Daza, supra, 247 Cal.App.4th at 268-69 (collecting cases).) The notable exception to this general principle is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.

In Mary M., the California Supreme Court held that a police officer’s act of raping a woman whom he detained while on duty “was not so divorced from his work that, as a matter of law, it was outside the scope of employment.” [Citation.] This is so, the court reasoned, because “[t]he danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.” [Citation.] “[S]ociety has granted police officers extraordinary power and authority over its citizenry. An officer who detains an individual is acting as the official representative of the state, with all of its coercive power.” [Citation.] Officers “are given the authority to detain and to arrest and, when necessary, to use deadly force. As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun. Those who challenge an officer’s actions do so at their peril; anyone who resists an officer’s proper exercise of authority or who obstructs the performance of an officer’s duties is subject to criminal prosecution.” [Citation.] “Inherent in this formidable power,” the court believed, “is the potential for [such] abuse.” [Citation.] The “danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.” [Citation.] Therefore, the court held that the third reason for applying the principle of vicarious liability exists: “The cost [an award of damages to the rape victim] resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.” [Citation.] The court also held the other two reasons for applying vicarious liability exist: imposing vicarious liability on the employers of police officers who rape women detained by the officers “would encourage the employers to take preventive measures” against the recurrence of such tortious conduct; and imposition of vicarious liability is “an appropriate method to ensure that victims of police misconduct are compensated” [Citation.]. (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129-30.)

Subsequent California Supreme Court cases have distinguished Mary M. on the basis that it was limited to the unique authority of police officers. (Farmers Ins., supra, 11 Cal.4th at 1012-13 (stating that “except where sexual misconduct by on-duty police officers against members of the public is involved [Citations], the employer is not vicariously liable to the third party for such misconduct”); Lisa M., supra, 12 Cal.4th at 304 (stating that Mary M. holding was “expressly limited” due to “unique authority vested in police officers”); see also Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 891 (“[T]here is considerable doubt that Mary M. has any applicability beyond the narrow context of an arrest performed by a uniformed, armed police officer in the normal course of that officer’s duties.”).) In fact, one Court of Appeal has noted that “the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting.” (M.P., supra, 177 Cal.App.4th at 124.)

“ ‘Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ [Citation.] In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment.’ ” (M.P. supra, 177 Cal.App.4th at 129.)

Defendant’s argument is persuasive because (1) the holding in Mary M. has been expressly narrowed to police officers only, (2) Lisa M., a case more analogous to the one at bar, determined that sexual misconduct toward a third party falls outside the scope of employment as a matter of law, and (3) sexual assault is not incidental to a security guard’s duties, nor is it foreseeable in light of the hospital’s business.

First, Mary M. is the only controlling authority cited by Plaintiff in support of the proposition that sexual misconduct toward a third party may fall within an employee’s scope of employment. The holding in that case was expressly limited: “We stress that our conclusion in this case flows from the unique authority vested in police officers. Employees who do not have this authority and who commit sexual assaults may be acting outside the scope of their employment as a matter of law.” (Mary M., supra, 54 Cal.3d at 218 fn. 11).) Accordingly, one Court of Appeal has noted that “the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting.” (M.P., supra, 177 Cal.App.4th at 124.)

As such, Mary M.’s narrow holding does not apply here. Bain was a security guard, not a police officer. A security guard is not vested with the same powers and responsibilities as a police officer.

Second, as Defendant notes, Lisa M. is more analogous to the facts of this case. In Lisa M., a patient sued an ultrasound technician for sexual battery committed during the ultrasound procedure. The prescribed examinations included pulling up plaintiff’s shirt, pushing her shorts down to reveal the area to be examined, and passing an ultrasound-generating wand across the plaintiff’s lower abdomen. The California Supreme Court rejected plaintiff’s argument that the technician’s conduct was generally foreseeable because of the physically intimate nature of the work. “In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to ‘propinquity and lust’…. We deal here not with a physician or therapist who becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship [Citation] but with an ultrasound technician who took advantage of solitude, access and superior knowledge to commit a sexual assault.”

Like Lisa M., this case involves alleged sexual battery committed on a hospital patient by a hospital employee/agent. If vicarious liability did not attach to sexual battery committed during an ultrasound by an ultrasound technician where intimate contact with the patient’s private parts is more likely to occur, then vicarious liability cannot reasonably attach to a security guard driving a patient home, off hospital premises. As Lisa M. instructs, “[t]hat the employment brought tortfeasor and victim together in time and place is not enough.” (Lisa M., supra, 12 Cal.4th at 298.)

Third, the sexual assault alleged is not a natural outgrowth of Bain’s employment. Bain is a security guard. Sexual assault of a patient is not conduct reasonably engendered by this type of employment. Nor is it foreseeable in light of the hospital’s business.

As to ratification, Plaintiff argues she has included allegations that Cedars ratified, authorized, instructed, and/or otherwise committed the acts that transpired. (Complaint at 9, 21, 23, 26, 28, 31, 33, 36, 38, 41, 43, 48, and 55.) For example, she argues that she has alleged that Bain had access to her medical file which revealed the vulnerabilities that Bain was able to exploit. (Id., at 15.) However, it is unclear how this allegation reveals that Defendant ratified Bain’s conduct. Moreover, there is no other factual basis to support the theory of ratification.

As such, Defendant’s demurrer as to Plaintiff’s first, second, third, fourth, and fifth causes of action is SUSTAINED with leave to amend.

Negligence (Sixth Cause of Action)

Plaintiff’s sixth cause of action for negligence is based on a theory of direct liability.

The elements of a cause of action for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn, supra, 147 Cal.App.4th at 747.)

As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances. (Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080.)

Here, Plaintiff alleges that Defendant failed to use reasonable care to prevent foreseeable harm to Plaintiff. (FAC, 46.) This is conclusory and insufficient in these circumstances to establish a legal duty to Plaintiff to prevent third party intentional acts.

Therefore, Defendant’s demurrer to the sixth cause of action is SUSTAINED with leave to amend.

Motion to Strike Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Discussion

Defendants also move to strike the allegations regarding punitive damages.

In light of the ruling on demurrer, the motion to strike is MOOT.

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED with leave to amend. Defendants’ motion to strike punitive damages is DENIED as MOOT.

Moving party is ordered to give notice.


Case Number: *******0326 Hearing Date: May 10, 2022 Dept: 29

TENTATIVE

Defendant’s demurrer is SUSTAINED with leave to amend. Defendants’ motion to strike punitive damages is DENIED as MOOT.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of Daniel K. Dik which satisfies the meet and confer requirements. (Code Civ. Proc. 430.41.)

Discussion

Battery, Assault, Sexual battery, False Imprisonment, and Intentional Inflection of

Emotional Distress, (Causes of Action 1-5)

Plaintiff’s first through fifth causes of action are based on a theory of vicarious liability. Plaintiff alleges that Defendant Cedars-Sinai (“Defendant”) is responsible for Defendant Bain’s actions because Bain is Defendant’s agent acting within the scope of the agency relationship.

Defendant argues these causes of action fail as against Defendant because the sexual misconduct alleged falls outside the scope of Bains employment as a matter of law. The Court agrees.

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) For the employer to be liable for an intentional tort, the employee’s act must have a “causal nexus to the employee’s work,” i.e., “inherent in the working environment” or “typical” to the employer’s business. (See Montague, supra, 223 Cal.App.4th at 1521; Lisa M., supra, 12 Cal.4th at 298-99.) The employee’s conduct falls within the scope of his employment and is thus a causal nexus if the conduct either: (1) is required by or incidental to the employee’s duties; or (2) it is reasonably foreseeable in light of the employer’s business. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.) An employer may also be liable for an employee’s acts where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Baptist v. Robinson (2006) 142 Cal.App.4th 151, 169.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Id.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Id.) “[For] adoption and ratification there must be some relation, actual or assumed, of principal and agent.” (Watkins v. Clemmer (1933) 129 Cal.App. 567, 572.) “A principal cannot ratify the act of the alleged agent, unless the agent purported to act on behalf of the principal.” (Emery v. Visa Internat. Service Ass’n (2002) 95 Cal.App.4th 952, 961, emphasis added.)

“That the employment brought tortfeasor and victim together in time and place is not enough [to satisfy the nexus required for respondeat superior liability].” (See Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th at 298.)

“Sexual assaults are not per se beyond the scope of employment. [Citation.] But courts have rarely held an employee’s sexual assault or sexual harassment of a third party falls within the scope of employment.” (Daza, supra, 247 Cal.App.4th at 268-69 (collecting cases).) The notable exception to this general principle is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.

In Mary M., the California Supreme Court held that a police officer’s act of raping a woman whom he detained while on duty “was not so divorced from his work that, as a matter of law, it was outside the scope of employment.” [Citation.] This is so, the court reasoned, because “[t]he danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.” [Citation.] “[S]ociety has granted police officers extraordinary power and authority over its citizenry. An officer who detains an individual is acting as the official representative of the state, with all of its coercive power.” [Citation.] Officers “are given the authority to detain and to arrest and, when necessary, to use deadly force. As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun. Those who challenge an officer’s actions do so at their peril; anyone who resists an officer’s proper exercise of authority or who obstructs the performance of an officer’s duties is subject to criminal prosecution.” [Citation.] “Inherent in this formidable power,” the court believed, “is the potential for [such] abuse.” [Citation.] The “danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law.” [Citation.] Therefore, the court held that the third reason for applying the principle of vicarious liability exists: “The cost [an award of damages to the rape victim] resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.” [Citation.] The court also held the other two reasons for applying vicarious liability exist: imposing vicarious liability on the employers of police officers who rape women detained by the officers “would encourage the employers to take preventive measures” against the recurrence of such tortious conduct; and imposition of vicarious liability is “an appropriate method to ensure that victims of police misconduct are compensated” [Citation.]. (M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 129-30.)

Subsequent California Supreme Court cases have distinguished Mary M. on the basis that it was limited to the unique authority of police officers. (Farmers Ins., supra, 11 Cal.4th at 1012-13 (stating that “except where sexual misconduct by on-duty police officers against members of the public is involved [Citations], the employer is not vicariously liable to the third party for such misconduct”); Lisa M., supra, 12 Cal.4th at 304 (stating that Mary M. holding was “expressly limited” due to “unique authority vested in police officers”); see also Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 891 (“[T]here is considerable doubt that Mary M. has any applicability beyond the narrow context of an arrest performed by a uniformed, armed police officer in the normal course of that officer’s duties.”).) In fact, one Court of Appeal has noted that “the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting.” (M.P., supra, 177 Cal.App.4th at 124.)

“ ‘Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ [Citation.] In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment.’ ” (M.P. supra, 177 Cal.App.4th at 129.)

Defendant’s argument is persuasive because (1) the holding in Mary M. has been expressly narrowed to police officers only, (2) Lisa M., a case more analogous to the one at bar, determined that sexual misconduct toward a third party falls outside the scope of employment as a matter of law, and (3) sexual assault is not incidental to a security guard’s duties, nor is it foreseeable in light of the hospital’s business.

First, Mary M. is the only controlling authority cited by Plaintiff in support of the proposition that sexual misconduct toward a third party may fall within an employee’s scope of employment. The holding in that case was expressly limited: “We stress that our conclusion in this case flows from the unique authority vested in police officers. Employees who do not have this authority and who commit sexual assaults may be acting outside the scope of their employment as a matter of law.” (Mary M., supra, 54 Cal.3d at 218 fn. 11).) Accordingly, one Court of Appeal has noted that “the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting.” (M.P., supra, 177 Cal.App.4th at 124.)

As such, Mary M.’s narrow holding does not apply here. Bain was a security guard, not a police officer. A security guard is not vested with the same powers and responsibilities as a police officer.

Second, as Defendant notes, Lisa M. is more analogous to the facts of this case. In Lisa M., a patient sued an ultrasound technician for sexual battery committed during the ultrasound procedure. The prescribed examinations included pulling up plaintiff’s shirt, pushing her shorts down to reveal the area to be examined, and passing an ultrasound-generating wand across the plaintiff’s lower abdomen. The California Supreme Court rejected plaintiff’s argument that the technician’s conduct was generally foreseeable because of the physically intimate nature of the work. “In cases like the present one, a deliberate sexual assault is fairly attributed not to any peculiar aspect of the health care enterprise, but only to ‘propinquity and lust’…. We deal here not with a physician or therapist who becomes sexually involved with a patient as a result of mishandling the feelings predictably created by the therapeutic relationship [Citation] but with an ultrasound technician who took advantage of solitude, access and superior knowledge to commit a sexual assault.”

Like Lisa M., this case involves alleged sexual battery committed on a hospital patient by a hospital employee/agent. If vicarious liability did not attach to sexual battery committed during an ultrasound by an ultrasound technician where intimate contact with the patient’s private parts is more likely to occur, then vicarious liability cannot reasonably attach to a security guard driving a patient home, off hospital premises. As Lisa M. instructs, “[t]hat the employment brought tortfeasor and victim together in time and place is not enough.” (Lisa M., supra, 12 Cal.4th at 298.)

Third, the sexual assault alleged is not a natural outgrowth of Bain’s employment. Bain is a security guard. Sexual assault of a patient is not conduct reasonably engendered by this type of employment. Nor is it foreseeable in light of the hospital’s business.

As to ratification, Plaintiff argues she has included allegations that Cedars ratified, authorized, instructed, and/or otherwise committed the acts that transpired. (Complaint at 9, 21, 23, 26, 28, 31, 33, 36, 38, 41, 43, 48, and 55.) For example, she argues that she has alleged that Bain had access to her medical file which revealed the vulnerabilities that Bain was able to exploit. (Id., at 15.) However, it is unclear how this allegation reveals that Defendant ratified Bain’s conduct. Moreover, there is no other factual basis to support the theory of ratification.

As such, Defendant’s demurrer as to Plaintiff’s first, second, third, fourth, and fifth causes of action is SUSTAINED with leave to amend.

Negligence (Sixth Cause of Action)

Plaintiff’s sixth cause of action for negligence is based on a theory of direct liability.

The elements of a cause of action for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn, supra, 147 Cal.App.4th at 747.)

As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances. (Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080.)

Here, Plaintiff alleges that Defendant failed to use reasonable care to prevent foreseeable harm to Plaintiff. (FAC, 46.) This is conclusory and insufficient in these circumstances to establish a legal duty to Plaintiff to prevent third party intentional acts.

Therefore, Defendant’s demurrer to the sixth cause of action is SUSTAINED with leave to amend.

Motion to Strike Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Discussion

Defendants also move to strike the allegations regarding punitive damages.

In light of the ruling on demurrer, the motion to strike is MOOT.

Conclusion

Based on the foregoing, Defendant’s demurrer is SUSTAINED with leave to amend. Defendants’ motion to strike punitive damages is DENIED as MOOT.

Moving party is ordered to give notice.


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